On November 15, the Centers for Medicare & Medicaid Services (CMS) issued a revised survey and certification memorandum that modified its policy regarding enforcement actions based on a nursing facility’s failure to have a fully automatic sprinkler system. By way of background, CMS published a Final Rule on August 13, 2008 that required all nursing facilities that participate in the Medicare and Medicaid programs to have an automatic sprinkler system within five years, by August 13, 2013. However, last week’s policy change has already provided relief for at least one facility, with more likely to follow.

CMS published an earlier survey and certification memorandum on August 16, just days after the August 13, 2013 deadline, which directed state survey agencies to cite any facility not fully sprinklered with a deficiency at a scope and severity level of D, E, or F, “at a minimum.” CMS stated that a C-level deficiency is “not appropriate, since the failure to have a complete automatic sprinkler system in place as of August 13, 2013 constitutes noncompliance.”1 The August 16 memorandum explained that no extensions would be granted for facilities not fully sprinklered. Last week’s survey and certification memorandum partially modifies, if not reverses, CMS’ articulated policy regarding scope of severity of sprinkler-related deficiencies. The significance of that change cannot be overstated since a deficiency at a D level or higher will trigger mandatory sanctions after 90 days and 180 days of noncompliance (i.e., a denial of payment for new admissions and termination from the Medicare program, respectively). Unlike discretionary enforcement actions, those sanctions cannot be waived.

The November 15 revision to CMS’ earlier policy statement reflects an understanding by CMS that many quality facilities that provide excellent care were not able to meet the August 13 deadline. Since CMS lacks the authority to grant an extension of the deadline, it agreed that where circumstances permit, it will allow a facility lacking an automatic sprinkler system to be cited at a C-level deficiency.2

According to CMS, as of November 15 there are 928 nursing facilities that are not fully sprinklered. CMS regional offices have already sent notices imposing enforcement actions for some facilities that are not fully sprinklered. Appealing an enforcement action that is predicated on the lack of a sprinkler system would be futile since there is no chance of prevailing, the remedy may not be challenged, and such an appeal would not delay an enforcement action.

In its November 15 memo, CMS recognized that “in rare cases CMS may find that the demonstrated application of such extraordinary protections, together with only a short exposure period of time before a full sprinkler status is achieved, has so reduced the fire injury risk that no more than a potential for minimal harm remains (i.e., a ‘C’ level scope and severity).” The extraordinary protections necessary to downgrade a deficiency to a C level are noted below.

CMS’ list of extraordinary protections includes the following criteria: (1) a 24-hour fire watch; (2) the posting of fire watch staffing information; (3) the building must be constructed of material with a fire resistance rating of at least two hours; (4) the facility must be in compliance with the requirements for smoke alarms and fire extinguishers must be available in common areas on each residential floor unless determined to be contraindicated by the medical director; (5) the facility must conduct fire drills on each shift at least monthly; (6) the facility must conduct monthly fire safety training of all staff who work in unsprinklered areas; (7) direct care staffing must be increased on each floor in all unsprinklered areas; (8) monthly fire inspections must be performed by the local fire marshal’s office or another independent and qualified inspection service; (9) the state survey agency shall maintain onsite monitoring, unless CMS determines it is not needed; and (10) the construction of the automatic sprinkler system has begun, or all necessary permits have been filed and the installation will be completed within six months, or all residents are removed from the portion of the building without an automatic sprinkler system.

A request for reevaluation of the scope and severity ratings based on the factors noted above must be sent to the appropriate CMS regional office, along with all appropriate documentation. Providers who believe they qualify for a downgrading of a scope and severity to a C level must also send a copy of all documents to their respective state survey agency.